30.11.2017 | KPMG Law Insights

Alternative Investments Legal | Issue 11/2017

Dear Readers,

Everything is new in May, as the saying goes – but November can also be a busy month: There is once again plenty of news in the field of alternative investments, which we would like to present to you in this issue.

Among other things, BaFin has amended its administrative practice on the granting of shareholder loans by AIF-KVGs and updated the leaflets on the licensing procedure for an AIF-KVG pursuant to Section 22 KAGB dated March 22, 2013 and FAQ on outsourcing pursuant to Section 36 KAGB.

Furthermore, the final version of MaRisk was published and an amendment to MaComp was consulted on.

We wish you an insightful reading and remain

With best regards

Dr. Ulrich Keunecke


Change in BaFin’s administrative practice on the granting of shareholder loans by AIF-KVGen

In a letter dated 27.11.2017 to the fund associations, BaFin has informed that it is changing its administrative practice with immediate effect regarding the granting of shareholder loans by AIF-KVGen. AIF-KVGen, which have issued so-called “shareholder loans” for the account of an AIF pursuant to Sec. 261 para. 1 No. 8, 282 para. 2 sentence 3, 284 para. 5 or 285 para. 3 KAGB will no longer require a permit extension for this purpose in the future.


Update of the leaflet on the permission procedure for an AIF-KVG according to § 22 KAGB

On November 27, 2017, BaFin updated the leaflet on the permission procedure for an AIF-KVG according to Section 22 KAGB dated March 22, 2013.

The updated version is dated Nov. 27, 2017, and is available here.


Publication of final version of the Minimum Requirements for Risk Management (MaRisk)

BaFin published the final version of the revised MaRisk on October 27, 2017.

After the last amendment was made in 2012, BaFin felt it was necessary to revise MaRisk to implement international requirements and bring it into line with current best practice.

MaRisk 2017 contains numerous clarifications and additions, but also new topics with far-reaching consequences for the institutions.

The final version can be viewed here.


Consultation on the revision of Circular 4/2010 (WA) – MaComp

BaFin intends to revise Circular 4/2010 MaComp and has published the wording of the intended amendments to AT 3.1, BT 2, 6, 9, 10 and 12.2 in draft form.

In addition to the adaptation of the existing modules, the revision includes the inclusion of several additional new modules.

The new modules AT 3.1, BT 2, 6, 9. 10 and 12.2 should be consulted, as they contain new content requirements that go beyond mere adaptations to the new legal situation. There will be no formal consultation on the other new or revised modules because, to the extent that the changes involve more than mere adaptations to the new legal situation, they are based on ESMA guidelines that have already been formally consulted on by ESMA and have already been given the opportunity to comment.

The consultation period ended on 30.11.2017.

Related links

You can find the consultation here.


Amendment of the FAQ on the subject of outsourcing in accordance with § 36 KAGB

BaFin informed on 15.11.2017 that the “FAQ on the topic of outsourcing according to § 36 KAGB” has been revised. The substantive changes concern the following three points:

  • Q&A No. 1 (Activities according to Annex I No. 2 AIFM-Directive)
  • Q&A No. 6 (Removal display)
  • Q&A No. 11 (Letterbox company)

The revised FAQ is available at this link.


Statement on the application of the PRIIPs Regulation to legacy funds

BaFin is of the opinion that PRIIP manufacturers must in principle also prepare and publish a PRIIPs KID for “legacy products” if these products are offered or distributed beyond 1.1.2018.

However, there is no obligation to prepare a PRIIPs KID if the original PRIIP manufacturer (or another person) only provides buying or redemption prices, but no selling prices (anymore) for a “legacy product” that is no longer offered to or distributed to retail investors after December 31, 2017. Furthermore, a sale of legacy funds via pure brokerage platforms by a retail investor within the meaning of Art. 4 No. 6 PRIIPs Regulation without a PRIIPs KID is also permissible. BaFin justifies its legal opinion by stating that the obligation to prepare a PRIIPs KID would clearly overburden a retail investor willing to sell, which could not be intended. Otherwise, retail investors would be deprived of an important opportunity to sell their shares.

BaFin points out that, for example, due to further developments or discussions at European level, it cannot be ruled out that it will review its view again at a later date and revise it if necessary. Furthermore, it is not foreseeable whether courts called upon to rule will also endorse this view.

EU Commission

Consultation on obligations of institutional investors and asset managers with regard to sustainability

The EU Commission launched a public consultation, “on institutional investors and asset managers’ duties regarding sustainability,” on Nov. 13, 2017. The consultation is based on the recommendation to the EU Commission to clarify that institutional investors and asset managers are obliged to consider environmental, social and governance aspects as well as sustainability.

The consultation period runs until 22.11.2018.

All information can be found at this link.


Consultation on second set of recommendations for the revision of capital requirements under Solvency II

EIOPA has published the paper “EIOPA-CP-17-006 Consultation paper on EIOPA’s second set of Advice to the European Commission on specific items in the Solvency II Delegated Regulation”.

The consultation ends on 05.01.2018.

The consultation paper can be found on EIOPA’s website at this link.


Recommendation to simplify the calculation of capital requirements under Solvency II

EIOPA submitted recommendations on the Solvency II Directive to the European Commission on 30.10.2017. This includes proposals to simplify the capital requirements under the standard formula of the Solvency II Directive. EIOPA also recommends creating a new asset class for unlisted guarantees issued by regional governments and local authorities. It is also recommended that the application of the look-through approach be extended to affiliates investing on behalf of the insurer.

The statement can be viewed here (in English).


Survey on the investment behavior of insurers

On Nov. 16, 2017, EIOPA published survey results analyzing the evolution of European insurers’ investment behavior over the past five years as part of its supervisory response to the ongoing low interest rate environment.

The survey was conducted in the first quarter of 2017 and focuses on the asset side of the balance sheet of large insurance groups. The results are based on submissions from 87 large insurance groups and 4 individual companies in 16 Member States of the European Union.

Information on the survey results can be viewed here.

German trade associations

Brexit Compendium

In order to bundle the concerns of the German business community for the Brexit negotiations, renowned German business associations published a digital “Brexit Compendium” across all sectors on 01.11.2017. The aim of the Brexit Compendium is to summarize the relevant topics from a business perspective in a reference work. For this purpose, the position papers of the participating business associations are brought together in one place.

Under this link you will find, among others, position papers of GDV, BdB, VÖB, BVI and Deutsches Aktieninstitut.

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Dr. Ulrich Keunecke

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